Montana Law Review
Volume 5
Issue 1 Spring 1944
Article 1
January 1944
When Is a Holographic Will Dated?
Claude W. Stimson
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Stimson: When is a Holographic Will Dated?
MONTANA LAW REVIEW
an appeal, as in cases of allowance of suit money in the court
below.
And, in conclusion, may we point out that we find a certain male illogic in originating the rule that a wife be required
to expend her own income for her support during a divorce
action. Does or does not a husband owe the duty of support
to his wife?
Geraldine Ede Hennessey.
WHEN IS A HOLOGRAPHIC WILL DATED?
The retent decision of the Supreme Court of Montana in
the case of Irvine's Estate' has aroused and renewed the interest
of legal minds in the subject of holographic wills. The history
of this kind of will reaches back to early French law which was
codified in the Code Napoleon, and its roots extend into Roman
times.' The word "holographic" is derived from two Greek
words meaning "whole" and "to write." The holographic will
is a will which is entirely in the testator's handwriting.! In the
words of the Napoleonic Code:' "An holographic testament shall
not be valid, unless it be written entirely, dated and signed by
the testator with his own hand: it is subjected to no other
form." Montana has adopted the following definition: "A holographic will is one that is entirely written, dated, and signed by
the hand of the testator himself. It is subject to no other form,
and may be made in or out of this state, and need not be witnessed. '
The holographic will stemming from French law has come
to be recognized in several European countries, including
Austria, Belgium, Germany, Italy, Spain and Scotland.' It is
also recognized in a few of the Central and South American
states, and in Louisiana and nine of the western states of the
United States." In nine other states a different kind of holographic will is found, which, instead of being a distinct type of
will, merely dispenses with the necessity of witnesses if the
instrument is in the handwriting of the testator, but in other
'In re Irvine's Estate, Wild v. Hall (1943) ...... Mont ....... , 139 P. (2d)
489.
'Citations to Roman origins are given in 28 YALE L. J. 72.
3PAGE, WILLS (3d ed. 1941) I, §383, p. 694; ATKINSON, WILLS, §133,
p. 305.
'CODE NAP.,
Art. 970.
'R. C. M. 1935, §6981.
7'28 YALE L.
J. 72; 14 CALIF. L. REv. 245.
California, Idaho, Montana, Nevada, North Dakota, Oklahoma, South
Dakota, Utah, Wyoming.
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Montana Law Review, Vol. 5 [1944], Iss. 1, Art. 1
NOTE AND COMMENT
respects must conform to the requirements of the general statute
on wills.' It is the former type of holographic will, set forth in
the Code Napoleon, which Montana has adopted and its Supreme
Court has applied in the Irvine case.
Several reasons have been advanced for giving effect to
the holographic will with no formalities except that it be
"entirely written, dated, and signed by the hand of the testator
himself." It has been said that the handwriting requirement
makes forgery difficult It would appear, however, that early
acceptance of the holographic will was based in considerable
part upon the theory that such will is the exclusively personal
act of the testator, and that the testator, by writing each word
of the document with his own hand, can not easily be imposed
upon. ° "A holographic will separates the testator from every
foreign influence and gives him full freedom of providing for
his inheritance without the dangers of an anticipated
publicity."' The holograph is itself evidence that the testator
was not incompetent or irresponsible.' "Indeed the fact that
the will is holographic, and that it was prepared by himself in
strict accord with the law prescribing the requisites of such a
testament-that by it he indicated that he knew that, as the law
requires, such a will, to be valid, must be in the testator's own
writing and dated by him-is itself well-nigh indubitable evidence that he was very much 'at himself' when he drew the
instrument, and at that time knew precisely what he was
doing . . . "
Holographic wills may be proved in the manner in which
other private writings are proved.' In most states strict compliance with the statutory requirements is insisted upon.' In
'ATKINSON,
WILLS, §133, p. 306.
'Inre Dreyfus' Estate (1917) 175 Cal. 417, 165 P. 941, L. R. A. 1917F
391; Heffner v. Heffner (1896) 48 La. Ann. 1088, 20 So. 281. In the
California case the court said: "Our code provision allowing olographic wills was first enacted in 1872. The commissioners who
drafted the Civil Code, in their note, recommend it on the ground that
it 'may not, and indeed it is confidently claimed in those countries
where olographic wills are recognized, does not give rise to as many
attempts at fraudulent will-making and disposition of property as
where it does not exist'."
1
In re Donovan's Estate (1903) 140 Cal. 390, 73 P. 1081; In re Mauvais' Estate (1919) 43 Cal. App. 64, 185 P. 987, 991; 5 CALIF. L. REv.
503.
uLuigi Miraglia, Comparative Legal Philosophy (Boston: The Boston
Book Co., 1912) p. 758.
u26 CAL. JUR. 855.
"In re Little's Estate (1920) 46 Cal. App. 776, 189 P. 818, 824.
"Mitchell v. Donohue (1893) 100 Cal. 202, 34 P. 614.
"In re Noyes' Estate (1909) 40 Mont. 190, 105 P. 1017, 26 L. R. A.
(N. S.) 1145, 20 Ann. Cas. 366; In re Carpenter's Estate (1916) 172
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Stimson: When is a Holographic Will Dated?
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other states courts have said that substantial compliance with
the statute is sufficient.'
Aside from the fact that a holographic will (1) must consist of a writing which shows testamentary intent-a requirement of any kind of will-the three principal requisites of the
holographic will are (2) that it be entirely in the handwriting
of the testator, (3) that it be truly signed, and (4) that it be
properly dated. In North Carolina and Tennessee there is (5)
the additional requirement that the will have been found among
the testator's valuable papers or effects, or that it have been
given to some person for safekeeping." The "date" requirement
of the holographic will is the central topic of this comment,
although each of the other four factors just mentioned will be
treated briefly."
The requirement of testamentary intent may be disposed
of in a few sentences, for it is the same requirement as that
found in any other kind of will. The will "must pass an interest
which is to take effect upon the death of the testator. It is to
be distinguished, on the one hand, from an instrument which
takes effect during the lifetime of the maker; and, on the other,
from an instrument which merely recites, as a fact, testator's
present intention or wishes, but which does not purport to
transfer property on testator's death, in accordance therewith."' A North Carolina case has held that it is not essential
that the testator intend the writing to be a will,' but several
California cases have emphasized the requirement that the
testator have intended the document to be his will.' And in the
states which require that the will be found among the testator's
Cal. 268, 156 P. 464, L. R. A. 1916E 498; In re Vance's Estate (1916)
174 Cal. 122, 162 P. 103, L. R. A. 1917C 479; In re Towle's Estate
(1939) 14 Cal. (2d) 261, 93 P. (2d) 555, 124 A. L.R. 624.
"Wise v. Short (1921) 181 N. C. 320, 107 S. E. 134; In re Hail's Estate
(1923) 106 Okla. 124, 235 P. 916.
"ATKINSON, WILTS, §134, p. 311.
1
It is perhaps unnecessary to add that all varieties of wills must meet
such general requirements as that the testator have mental capacity
to make a will, and that undue influence and fraud were not present.
ATKINSON,
WILLS, §133, p. 305.
"PAGE, WILLS (3d ed. 1941) I, §385, p. 695.
See in re Richardson's Estate (1892) 94 Cal. 63, 29 P. 484; In re Major's Estate (1928) 89 Cal. App. 238, 264 P. 542; In re Ross' Estate
(1933) 131 Cal. App. 635, 22 P. (2d) 22.
"Alston v. Davis (1896) 118 N. C. 202, 24 S. E. 15. Testator wrote, in
a letter to his sister in which'he told of his plans for the future: "If
I die or get killed in Texas, the place must belong to you, and I
would not want you to sell it." The court held that the writing constituted a valid holographic will.
2'Ahlborn v. Peters (1940) 37 Cal. App. (2d) 698, 100 P. (2d) 542; In
re Hathway's Estate (1940) 38 Cal. App. (2d) 526, 101 P. (2d) 741;
In re Kenyon's Estate (1941) 42 Cal. App. (2d) 423, 109 P. (2d) 38.
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Montana Law Review, Vol. 5 [1944], Iss. 1, Art. 1
NOTE AND COMMENT
valuable papers, "the fact that a holographic will is found
'among the valuable papers and effects' of the deceased implies
that it was placed there by him or with his knowledge and consent, with the intention that it should operate as his will.'
The requirement that a holographic will be entirely in the
handwriting of the testator is said to make forgery more
difficult.' Litigation concerning this requirement has led to a
considerable number of interesting conclusions. Typewriting is
generally not recognized as handwriting, although one case has
been reported where the court held valid a document written
on a typewriter by a man who was physically incapable of writing in long-hand. " In general it is believed that long-hand
writing can be forged less easily than typewriting,' although
there is something to be said on the other side of the question."
California courts have pointed out that in 1872, when the
statute recognizing holographic wills was first enacted in that
state, "the practical modern typewriter, now in almost universal use, was unknown. ""a And presumably the framers of the
statute used the word "written" to mean letters drawn in longhand. Anything in the nature of printing is excluded.
One of the most litigious questions concerning the "entirely
written" requirement is how to interpret a document which
is partly in the deceased's handwriting and partly printed or
typewritten. The courts attempt to apply the rule that the
document is not valid as a holographic will if the deceased intended to incorporate in it any of the words not in his own
handwriting. If the written part constitutes in complete form
the writing of the deceased, the printed words may be discarded
as surplusage." California has recently added to its code provision on holographic wills these words: "No address, date or
other matter written, printed or stamped upon the document,
which is not incorporated in the provisions which are in the
handwriting of the decedent, shall be considered as any part of
the will." ' This provision was not intended as a change in the
existing law, however, but was added for the purpose of codify'In re Cole's Will (1916) 171 N. C. 74, 87 S. E. 962, 963.
"In re Dreyfus' Estate, supra, note 9; ATKINsoN, WILLS, §134, p. 307.
"M'Beath Trustees v. M'Beath (1935) Scots Law Times Rept., 315.
'In re Dreyfus' Estate, 8upra, note 9.
"5 CALIF. L. REV. 503.
"aln re Dreyfus' Estate, supra, note 9.
2In
re Thorn's Estate (1920) 183 Cal. 512, 192 P. 19; In re Bernard's
Estate (1925) 197 Cal. 36, 239 P. 404; In re Atkinson's Estate (1930)
110 Cal. App. 499, 294 P. 425; In re Bower's Estate (1938) 11 Cal. (2d)
180, 78 P. (2d) 1012.
'PROB.
CODE §53.
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Stimson: When is a Holographic Will Dated?
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ing the law as the courts had already interpreted it." Space does
not permit a detailed statement of conclusions reached in each
of the various situations where courts have interpreted documents containing both written and printed words; but the
"surplusage" view will be considered in some detail under the
section on the "date" requirement.'
The third requisite of a holographic will is that it be truly
signed by the testator. The signature need not be at the end of
the document unless there is a statutory requirement to that
effect. The signature may be on the margin," or elsewhere in the
document, if it can be shown that the testator intended it to be
his signature. The heart of the problem here is the intention of
the testator; and the difficulty of discovering that intention
when there are no witnesses is obvious.'
A few decisions will
illustrate the problem and the viewpoint of the courts. Where
a document ended with the words "last will of John Jones," it
was held to be adequately signed, the court stating that an inspection of the entire instrument showed that the testator intended it to be his signature.' A signature on an envelope containing a will has been held insufficient." It has been held that
a signature at the end is not necessary when the testator has
written his name in the first line of the will.' And in another
California case the court pointed out that, to denominate the
writer's name in the first line a signature, it must be established
that the instrument is on its face a complete, and executed
document.' But courts have held that the name written in the
first line may constitute a valid signature even though there
'In re Bower's Estate, supra, note 27; In re Towle's Estate, 8upra,
note 15; In re Goldsworthy's Estate (1942) 54 Cal. App. (2d) 666,
129 P. (2d) 949.
Two other points may be noted before leaving the "entirely in the
handwriting" subject. Signatures found in an attestation clause do
not invalidate the document as a holographic will; the presumption
being, until rebutted, that the signatures of the witnesses were for the
purpose of proving the testator's handwriting, and not for the purpose of executing a statutory will. In re Sober's Estate (1889) 78
Cal. 477, 21 P. 8: UNDERHILL, WILLS I, §9, p. 16; RoOD, WILLS (2d ed.
1926) §271, p. 213.
No other document not in testator's handwriting can be incorporated by reference, since to do so would incorporate as a part of the
will words not in testator's own handwriting. Hewes v. Hewes (1916)
110 Miss. 826, 71 So. 4.
"In re Button's Estate (1930) 209 Cal. 325, 287 P. 964.
"ATKINSON, WILLS §134, p. 310.
'In re Brandow's Estate (1932) 59 S.D. 364, 240 N. W. 323.
'In re Tyrrell's Estate (1915) 17 Ariz. 418, 153 P. 767.
"In re Kinney's Estate (1940) 16 Cal. (2d) 50, 104 P. (2d) 782.
'In re Morgan's Estate (1927) 200 Cal. 400, 253 P. 702.
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NOTE AND COMMENT
is no period at the end of the document." The general view is
that the court must determine, from an examination of the
entire instrument, whether or not the writer completed the
writing and intended his name written in any part of the instrument to constitute his signature.'
A fourth esseutial to the validity of a holographic will is
that the document be found among the testator's valuable
papers and effects, or that it have been given to another person
for safekeeping. The fact that a testator considers the document
sufficiently valuable to keep with his valuable effects indicates
a sort of testamentary intent. Since only two states!* have this
requirement in their holographic wills statute, however, no
further space can be given to it in this comment; and the final
requirement, that the will be dated in the testator's handwriting, will now be considered.
It is of course necessary that the holographic will be dated
only when the statute so provides. French law prior to 1735
did not require a date. In Montana and California, and in six
other states," the statute does include this requirement. The
date must be entirely in the testator's own handwriting; and
this requirement and the definition of "date"
constitute a
fertile field for litigation. It is conceded that the sufficiency
of the date must be determined from the face of the document,
with no resort to extrinsic evidence to show which figures are
intended as the correct date." It is also generally held that the
place is not a part of the date, ana hence the fact that the name
of the city or state is printed or is omitted does not invalidate
the date." Courts are also in general agreement that it does
not matter where, on the document, the date is placed, so long
'"In re England's Estate (1927) 85 Cal. App. 486, 259 P. 956; In re
Brooks' Estate (1931) 214 Cal. 138, 4 P. (2d) 148.
"In re Manchester's Estate (1917) 174 Cal. 417, 163 P. 358, L. R.A.
1917D 629, Ann. Cas. 1918B 227; In re McMahon's Estate (1917) 174
Cal. 423, 163 P. 669, L. R. A. 1917D 778; In re Sullivan's Estate (1928)
94 Cal. App. 674, 271 P. 753; In re Bauman's Estate (1931) 114 Cal.
App. 551, 300 P. 62.
'North Carolina and Tennessee.
"OSee 28 YALE L. J. 72.
"Idaho, Louisiana, North Dakota, Oklahoma, South Dakota, Utah. See
ATKINSON, WILs §134, pp. 308-9.
"Succession of Beird (1919) 145 La. 756, 82 So. 881, 6 A. L. R. 1452;
Succession of McCay (1928) 166 La. 681, 117 So. 772.
"Stead v. Curtis (1911)
191 F. 529, 112 C. C. A. 463, aff. 205 F. 439,
123 C.C. A. 507: In re Oldham's Estate (1928) 203 Cal. 618, 265 P. 183;
In re DeCaccia's Estate (1928) 205 Cal. 719, 273 P. 552, 61 A. L. R.
393; Robertson's Succession (1897) 49 La. Ann. 868, 21 So. 586, 62
Am. St. Rep. 672; Succession of Heinemann (1931) 172 La. 1057, 136
So. 51.
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as the testator clearly intended it to be the date." It has even
been held that a date at the beginning of the writing may
differ from a date at the end, without invalidating the instrument.' Furthermore, it has been held to be immaterial whether
a date at the top of an instrument was the date of the will or
the date when the testator was the owner of the property
listed, the statutory requirement that the instrument be "dated"
having been fulfilled."
Even though the instrument contain two different dates,
the statute is satisfied, since a holograph need not be written
all at one time.' The instrument may be dated after it has been
executed." One figure may be written over another and yet the
date requirement be satisfied, provided it is clear which figure
the testator intended as the date." Strict construction, however,
has refused to permit a date to be found indirectly, as, for
example, by means of a statement giving the age of the
testator,' or a statement concerning the "1935 LaSalle which
I now drive. "51
It is generally agreed that abbreviations may be used, in
writing the date, provided their meaning is clear. Some of the
abbreviations which have been upheld are: "March 26/25, "
"4/12/17th,'
"4-14-07.' "" Where the figures for the day and
month are both less than 13, however, the date is usually held
to be invalid because the meaning is uncertain.' Abbreviations
must, of course, be adequate to represent a complete date.
One of the most interesting of the interpretations de"Zerega v. Percival (1894) 46 La. Ann. 590, 15 So. 476; Jones v. Kyle
(1929) 168 La. 728, 123 So. 306.
"Picard v. Succession of Picard (1934) 179 La. 746, 155 So. 11.
"In re Clisby's Estate (1904) 145 Cal. 407, 78 P. 964, 104 Am. St. Rep.
58.
'7 Succession of Guiraud (1927) 164 La. 620, 114 So. 489; Succession of
Cunningham (1918) 142 La. 701, 77 So. 506; Jones v. Kyle, supra, note
44; Picard v. Succession of Picard, supra., note 45.
"Jones v. Kyle, supra, note 44.
"Successi'n of McCay, supra, note 42.
'Estate of Martin (1881) 58 Cal. 530.
5'In re Schiffmann's Estate (1936) 16 Cal. App. (2d) 650, 61 P. (2d)
331.
'Succession of Caro (1932) 175 La. 402, 143 So. 355; Succession of
Coleman (1933) 177 La. 898, 149 So. 513.
"In re Olssen's Estate (1919) 42 Cal. App. 656, 184 P. 22.
"In re Chevallier's Estate (1911) 159 Cal. 161, 113 P. 13.. Also see In
re Lakemeyer's Estate (1901) 135 Cal. 28, 66 P. 961, 87 Am. St. Rep.
96; In re Carpenter's Estate, supra, note 15; In re Vance's Estate,
supra, note 15; Succession of Heinemann, supra, note 43.
'Succession of Beird, supra, note 42, in which "9/8/18" was held invalid because it was not clear which figure represented the month and
which the day. See also In re Price's Estate (1910) 14 Cal. App. 462,
112 P. 482.
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Montana Law Review, Vol. 5 [1944], Iss. 1, Art. 1
NOTE AND COMMENT
veloped by the courts is the generally accepted view that although the date must be complete it need not be correct.
Apparently the word "dated," as used in the statute, means
a complete date consisting of year, month, and day; but the
instrument is "dated" whether the date is the correct one or
not. For example, a California court has recently said: "The
cases have firmly established the rule that the requirement
of a date includes the day, month and year, and that if any one
of them is omitted or not written by the testator the document
cannot be admitted to probate as a holographic will .
. The
date stated need not, however, be the actual date of execution
of the will. "
Unusual sets of facts have given rise to some interesting
opinions which perhaps have not always been in accord with
common sense. In Estate of Vance" probate of a holographic
will was refused because the testator failed to complete the
year, leaving it "this 22nd day of March in the year of our
Lord one thousand," when the year should have been "one
thousand nine hundred and ten." The court pointed out that
day, month and year must be given, in order to comply with
the statute; that, although the date need not be the date on
which the instrument was in fact written, it must be complete.
In other words, California courts, following the Louisiana decisions,' distinguish between an incorrect date, as in a case
where the year 1859 was written instead of the year 1889,'
which will not necessarily vitiate the will, and an incomplete
date which is held not acceptable. It may be argued that the
year as stated in the Vance case was a complete year, but the
answer is that the testator did not complete the date which he
intended to write. It has been pointed out that the distinction
made by the California and Louisiana courts is not parallel to
the distinction made by the French authorities between an
incorrect and an incomplete date. In France the holographic
will is invalid if it does not contain "the precise and certain
indication of the day, month and year in which it was drawn."
An incomplete date does not satisfy this requirement; whereas
an incorrect date is presumed to be correct unless evidence
"In re Clark's Estate (1942) 55 Cal. App. (2d) 85, 129 P. (2d) 969,
971. See also In re Vance's Estate, 8upra, note 15; In re Maguire's
Estate (1936) 14 Cal. App. (2d) 388, 58 P. (2d) 209; 26 CAL. JUR.
859, 860.
"Supra, note 15.
'8See Heffrer v. Heffner, supra, note 9.
"Estate of Fay (1904) 145 Cal. 82, 78 P. 340, 104 Am. St. Rep. 17.
See also In re Wilkinson's Estate (1931) 113 Cal. App. 645, 298 P. 1037.
'5 CALIF. L. RaV. 266, 267.
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found in the instrument itself shows it to be incorrect, in which
event the will is invalid unless the date can be corrected from
evidence found in the instrument itself."
It has been held that omission of the century does not
violate the date requirement, since the assumption is that the
latest possible century was intended.' But the omission of day,
month or year is fatal according to the preponderance of
authority.' An old Louisiana case6 ' and an Oklahoma case'
stand practically alone in upholding the validity of a holographic will dated with month and year only.
To fulfill the statutory requirement the date must be
entirely in the handwriting of the testator. A consequence of
this provision has been much litigation, particularly concerning
dates which are partly in printed form. There may be said to
be two theories which courts have applied in working out most
of these cases. They may be called the intent and the surplusage
theories." In the intent theory the court attempts to discover,
from an inspection of the entire instrument, whether or not the
testator intended to adopt the printed figures as a part of the
written instrument. If he did, the writing can not be held to
constitute a valid will, for the reason that it would not be
entirely in the testator's handwriting. In applying the
surplusage theory the court, instead of seeking the testator's
intention, attempts to determine whether or not the printed
figures are necessary to a complete date. In a California case,
Estate of Francis,' for example, the court followed the intent
theory and held invalid as a holographic will a document in
which the first two figures of the year were printed. The
printed figures, although not necessary to an adequate dating
0Other cases holding that the date need not be the correct date: Barney
v. Hayes (1891) 11 Mont. 99, 27 P. 384, 28 Am. St. Rep. 495; In re
Noyes' Estate, 8upra, note 15; In re Clisby's Estate, supra, note 46. In
Jones v. Kyle, supra, note 44, the court said that a will dated five
years after it was written and signed was valid, the subsequent dating indicating that the testator intended to "persist" in the disposition
made in the will.
'2In re Lakemeyer's Estate, supra, note 54; In re Chevallier's Estate,
supra, note 54.
'In re Price's Estate, 8upra, note 55; In re Anthony's Estate (1913) 21
Cal. App. 157, 131 P. 96; In re Carpenter's Estate, 8upra, note 15; In
re Maguire's Estate, 8upra, note 56; Fuentes v. Gaines, 25 La. Ann.
85; Heffner v. Heffner, upra, note 9; Robertson's Succession, supra,
note 43; Succession of Lasseigne (1938) (La. App.) 181 So. 879: Montagne v. Street (1930) 59 N. D. 618, 231 N. W. 728; In re Love's Estate (1930) 75 Utah 342, 285 P. 299.
'Gaines v. Lizardi (1877) 3 Woods 77.
"In re Hail's Estate, supra, note 16.
"See 12 N. C. L. Rerv. 213, 214.
"7(1923) 191 Cal. 600, 217 P. 746.
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NOTE AND COMMENT
of the will, were assumed to have been adopted by the writer
as a part of the instrument. Had the surplusage theory been
applied, the court might have discarded the printed figures and
still have had a sufficient dating, since California cases in
general hold that the century is not essential to a date provided
the decade and year are properly written.' The view in California has been changing, however. In a recent case,' a holographic will was upheld although the year used in the date
consisted of the figures "19"
printed and figures "38"
written. The court said that it would be giving the words a
strained construction to hold that the figures "19" were intended as a part of the will, since they were neither expressly
nor impliedly referred to in the instrument. It would perhaps
have been a more satisfactory explanation of its holding if the
court had thrown out the intent theory and adopted the surplusage theory. In any event the trend appears to be towards
greater liberality in construing the dating requirement of the
holographic will.'"
In the light of principles and interpretations enunciated
by the courts, what can be said of the decision in the recent
Montana case of Irvine's Estate?" The court held valid as a
holographic will a written document dated "this day of May,
1938." In the "majority" opinion, Justice Adair considers in
some detail the etymology of the word "date." It is doubtful,
however, that this investigation is of much assistance to a
modern court in deciding what a legislature may be presumed
to have meant by the requirement that a holographic will be
"entirely written, dated, and signed" in the testator's own
handwriting. Reference is made to cases which hold that an incorrect date does not invalidate a written instrument; but the
question before the court concerns the adequacy of an incom-
plete date, not an incorrect one. Attention is also called to cases
involving the proper dating of instruments other than holographic wills, but here also the irrelevancy of the citations is
obvious. The court has before it a set of facts, and it is called
""4-14-07" was held sufficient In In re Chevaller's Estate, supra, note
54. See In re Plumel's Estate (1907) 151 Cal. 77, 90 P. 192, 121 Am.
St. Rep. 100, in which the date was held not sufficient where "190" of
the year "1904" was printed. See also In re Lakemeyer's Estate,
8upra, note 54; In re DeCaccia's Estate, supra, note 43.
"Inre Durlewanger's Estate (1940) 41 Cal. App. (2d) 750, 107 P. (2d)
477.
"The surplusage theory is applied in Baker v. Brown (1904) 83 Miss.
793, 36 So. 539, 1 Ann. as. 371; Gooch v. Gooch (1922) 134 Va. 21,
113 S.E. 873. The theory is implied, as dictum, in In re Noyes' Estate, supra, note 15.
"Supra, note 1.
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MONTANA LAW REVIEW
upon to apply the statute on holographic wills and decide
whether or not the requirements of that statute have been
fulfilled. One of those requirements is that the will be "entirely
• . dated" in the testator's own handwriting. In other states
having a similar statute, the courts are almost unanimous in
reaching the conclusion that "entirely dated" requires that day,
month and year be given. To determine what the legislature
meant when it enacted the provision is clearly not usurping a
legislative function, for what alternative exists if the statute
is to be applied? In the light of the unanimity of the decisions
in California and the other states, the result reached in the
Montana case is highly questionable.
Justice Morris bases his concurrence in the result upon
the immateriality of the date in the circumstances of the present
case. The implication of his opinion is that "entirely dated" is
a requisite to the validity of a holographic will only when the
date is important in determining which will is the testator's
latest will, or when the question of the testator's mental
capacity is raised. Since neither question is an issue in the
present case, Justice Morris agrees that the date need not be
complete. Upon this reasoning, however, could not the entire
date be omitted? The statute clearly requires that a holographic
will be dated. To fulfill this requirement it is essential that
courts determine what constitutes a "date;" and the almost
unanimous opinion of the courts has clearly set forth the
answer. Since wills are creatures of statutes, presumably the
statutory requirements must be satisfied on every occasion
where the validity of a will is to be determined, without regard
to the court's opinion as to the "materiality" of any requirement in a given situation.
An interesting aspect of the Irvine case is the division of
opinion shown by the court. Only one justice concurred in the
"majority" opinion written by Justice Adair. Justice Morris
concurred in the result, but based his conclusion upon entirely
different reasoning. Chief Justice Johnson wrote a strong
dissenting opinion in which Justice Anderson concurred. This
opinion fairly reflects the state of existing authority and
interpretation under this kind of statute. Thus only two
justices, of a court of five, were in agreement on the proposition that a holographic will is properly dated when only the
month and year are given. According to the weight of authority,
an opinion can not be cited as a precedent unless it is written
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Montana Law Review, Vol. 5 [1944], Iss. 1, Art. 1
NOTE AND COMMENT
or concurred in by a majority of the justices sitting on the
case."
In a recent Missouri case," the court stated in the following
words the rule as to non-majority opinions: "The Halliburton
case could not have been overruled by the Stokes case because
the principal opinion in the latter had the full concurrence only
of its author and two other judges, another judge concurring
only in the result, and three judges dissenting. It therefore
was binding only as to the result reached therein, and did not
overrule prior inconsistent decisions."
A Michigan court,"4 referring to a case cited by counsel
as authority, said: "This language is not authority because
it was concurred in by only two justices and not by a majority
of the court."
The conclusion is inescapable that there is no opinion in
the Irvine case which may be cited as a precedent. The case
decides that the holographic will under consideration is valid;
yet no principle of law has been formulated or approved. What
is essential to the fulfillment of the "dated" requirement of
the statute on holographic wills in Montana is precisely what
it was before Mrs. Irvine wrote her will and before that will
was litigated in the courts of Montana.
Claude W. Stimson.
nOff v. U. S. (1929) 35 F. (2d) 222; Shepherd v. People (1942) 109
Colo. 582, 129 P. (2d) 104; Codd v. McGoldrick Lumber Co. (1929)
48 Ida. 1, 279 P. 298, 67 A. L. R. 580; State v. Gochenour (1920) (Mo.)
225 S. W. 690, 691; Viquesney v. Kansas City (1924) 305 Mo. 488, 266
S. W. 700; State ex rel. Columbia National Bank of Kansas City
v. Davis (1926) 314 Mo. 373, 284 S. W. 464, 467; State v. Frost (1926)
(Mo.) 289 S. W. 895, 897; Coleman v. Haworth (1928) 320 Mo. 852, 8
S. W. (2d) 931, 934; Coates and Hopkins Realty Co. v. Kansas City
Terminal Ry. Co. (1931) 328 Mo. 1118, 43 S. W. (2d) 817, 823; Moseley v. American Nat. Ins. Co. (1932) 167 S. C. 112, 166 S. E. 94, 96.
'Moore v. Brown (1942) ...... Mo ........ 165 S. W. (2d) 657, 661.
"Groening v. McCambridge (1937) 282 Mich, 135, 275 N. W. 795, 796.
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